Terms and conditions
Introduction
The following terms and conditions apply in respect of all work undertaken by Click Strategy Limited in response to a request for the supply of services and/or materials received from the Client (see definition below). The communication of a request by the Client to Click Strategy Limited for the supply of services and/or materials shall amount to the Client’s acceptance of these terms. These terms shall take precedence over any terms and conditions of the Client, whether attached to, enclosed with or referred to in any purchase order of the Client or elsewhere. They may not be varied except by written agreement between Click Strategy Limited and the Client.
Conditions of supply
1. Definitions
The following terms as used herein shall have the meaning as stated:
“Click” means Click Strategy Limited (company number 09863524) whose registered office is situated at 11 Laura Place, Bath, BA2 4BL, United Kingdom.
“Brief” means either (a) the written brief describing the Deliverables, their intended use and any pre-set timings for supply, signed by the Client and supplied in advance of conclusion of the Contract or (b) where no such written brief exists the instructions provided by the Client to Click and Click’s written confirmation to the Client of such instructions shall be regarded as conclusive proof thereof. “Conditions” means these Conditions of Supply. “Confidential Information” means any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential or the information could reasonably be supposed to be confidential.
“Contract” means the agreement whereby Click carries out any services instructed by the Client.
“Client” means any person, firm, company or other organisation who is the addressee of Click’s Quotation or acceptance of order issued by Click and shall include any successor-in-title of the Client and any company or entity arising (wholly or partly) by way of any merger, amalgamation, reorganisation or acquisition of the Client.
“Deliverables” means the Services and/or materials developed by Click or its agents, subcontractors, consultants and employees in relation to the Services in any form (including drafts).
“Input Material” means any documents, plans, drawings, designs or other materials, and any data or other information provided by the Client to Click relating to the Services.
“Intellectual Property Rights” means any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered.
“Output Material” means any documents, plans, drawings, designs or other materials, and any data or other information provided by Click to the Client relating to the Services.
“Pre-existing Materials” means all documents, information and materials provided by Click relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications.
“Project” means any provision of services (other than under the terms of Retainer) and which is described in a Quotation provided by Click. To the Client and which is agreed between the parties.
“Quotation” means the cost for services provided by Click to the Client.
“Retainer” means a contract under which Click agrees to provide ongoing services for a fixed number of days/hours per month, or a fixed service every month (or at such other intervals as shall be agreed).
“Services” means the services agreed to be performed by Click for the Client (including any part or parts of them) together with any other services which Click provides, or agrees to provide, to the Client.
1. Formation of the contract
1.1. The acceptance of a Quotation for Services by Click constitutes an offer by the Client to purchase the Services specified in it on these Conditions. The Client will be deemed to have accepted a Quotation when it either signs the Quotation or otherwise communicates to Click that it has accepted the Quotation. The Contract is deemed to commence on the earlier of:
1.1.1. a written acknowledgement issued and executed by Click; or
1.1.2. by Click starting to provide the Services.
1.2. Any Quotation is valid for a period of fourteen (14) days from its date, provided that Click has not previously withdrawn it in writing. The Client acknowledges that it enters into the Contract in the course of its business and not as a consumer.
2. Commencement of the services
2.1. The Services shall be provided by Click to the Client from the date agreed by the parties or if earlier the date when Click started to provide the Services.
3. Click’s obligations
3.1. Click will use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Client, in accordance with the Brief.
3.2. Click shall use reasonable endeavours to meet any performance dates specified in the Brief, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4. Client’s obligations
4.1. The Client shall:
4.1.1. co-operate with Click in all matters relating to the Services;
4.1.2. provide to Click, in a timely manner, such Input Material and other information as Click may reasonably require and ensure that such information is accurate in all material respects;
4.1.3. ensure that all Input Material is owned by the Client, or, if not, ensure that the Client has permission from the legal owner to enable Click to legitimately use the Input Material in the provision of the Services.
4.2. The Client acknowledges that the late supply of Input Material may have an impact on Click’s ability to deliver the Services. If Click’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Click shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
4.3. The Client warrants that the Brief is accurate in all respects. As the Quotation and any pre-set dates for supply of the Deliverables will be agreed on the basis of the Brief, any changes to it, whether resulting from alterations by the Client, delay in providing Click with Input Material, information, instructions or authorisations, supply of faulty materials to Click by the Client, or any other circumstances beyond Click’s control, will be subject to extra charges for Click’s time and work and may involve delays in supply. The Client will pay these extra charges and reimburse Click for any third party charges or expenses incurred by Click on the basis of the original Brief.
4.3. The Client shall indemnify Click, from and against, all costs, charges or losses sustained or incurred by Click arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Click confirming such costs, charges and losses to the Client in writing.
4.4. The Client shall indemnify Click against all losses, costs or charges it may incur arising as a result of any action, claim or threatened claim (as applicable) that Click’s use of the Input Material in accordance with the Contract constitutes an infringement of the intellectual property rights of a third party.
4.5. The Client shall not, without the prior written consent of Click, at any time from the date of the Contract to the expiry of six (6) months after the last date of supply of the Services, solicit or entice away from Click or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of Click in the provision of the Services.
4.6. Any consent given by Click in accordance with condition 4.5 shall be subject to the Client paying to Click a sum equivalent to twenty per cent (20%) of the then current annual remuneration of Click’s employee, consultant or subcontractor or, if higher, twenty per cent (20%) of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
5. Approvals
5.1. Written approval by the Client of final copy, layouts, scripts, storyboards, designs and the like will be Click’s authority to proceed with production, printing, or publication as appropriate.
5.2. Where artwork or other material is sent to the Client for final approval, the Client shall check it carefully and notify Click by email, fax or post of any errors or alterations. Click will use its reasonable endeavours to effect any changes so notified but Click reserves the right to charge extra if any of these alterations either go beyond the original Brief or are notified to Click more than three (3) working days after their supply to the Client. Where notification of errors is either delayed in this way or does not occur at all before publication, Click will not be liable in respect of any such errors. Click will also not be liable in respect of errors occurring where the Client either does not pay for proofs or mock-ups or oversees the print and production process or does not allow enough time in the production schedule to check layouts, copy, pagination or other content aspects. Click cannot guarantee that any or all colours will be exactly replicated in the final version as published.
6. Charges and payment
6.1. In consideration of the provision of the Services by Click, the Client shall pay the charges as set out in the brief or Quotation.
6.2. Unless otherwise agreed in writing by Click, Click will invoice the Client thirty per cent (30%) of the total price for the Services prior to Click commencing the Services and fifty per cent (50%) of the total charges shall be paid by the Client to Click (without deduction or set-off) upon initial delivery for approval. Following delivery of the Services the final twenty per cent (20%) will be invoiced.
6.3. Where the Services are provided on the basis of a Retainer:
6.3.1. the charges payable shall be calculated in accordance with Click’s standard daily/hourly fee rates, as amended from time to time by Click;
6.3.2. the charges will be payable monthly in advance, or as otherwise stated in the Quotation.
6.4. All invoices are payable within 15 days of receipt as payments dictate progression of the project at specific milestones. If invoices are not paid with immediate effect, Click has the right to desist working on the project until payment is made. Any other payment terms agreed between the Client and Click must be confirmed in writing by Click.
6.5. Unless otherwise stated in writing any price and daily rate contained in the Quotation excludes:
6.5.1. the cost of hotel, subsistence, travelling, scans, print-outs, delivery and any other ancillary expenses reasonably incurred in connection with the Services, and the cost of any materials or disbursements. Such expenses, materials or disbursements shall be invoiced to the Client at cost; and
6.5.2. VAT, which Click shall add to its invoices at the appropriate rate.
6.6. All additional work requested by the Client, which is requested following commencement of the Services and which is outside the scope of the Quotation (including any services necessarily procured in order to carry out the Services) shall be regarded as additional to the cost given in the Quotation and will be invoiced separately at the rates contained in the then current Click rate card.
6.7. All charges listed in Quotations are estimates and are subject to final confirmation during the provision of the Services.
6.8. The Client shall be entitled to request up to two (2) amendments to the design work/artwork supplied for approval. Any amendments requested by the Client in addition to the two (2) permitted amendments will be deemed to be additional work and will be charged at Click’s standard hourly fee rates.
6.9. If the Client believes that the Deliverables do not conform to the description then it shall notify Click within three (3) days of receiving the same. If no notification is received then the Deliverables shall be deemed accepted and to conform to the description of the Services in every respect. For the purposes of this condition 6.9 Click’s liability for defects in the Deliverables shall be limited to the replacement of the Deliverables at no additional cost to the Client provided always that such defect is notified to Click in accordance with this condition 6.9 and the Deliverables have been returned to Click for inspection.
6.10. Once the Client has approved the Deliverables all further design work requested by the Client will be charged in accordance with the then current Click rate card.
6.11. The parties agree that Click may review and increase its standard hourly fee rates at any time, provided that such charges cannot be increased more than once in any twelve (12) month period. Click will provide the Client with written notice of any such increase one (1) month before the proposed date of the increase. If such increase is not acceptable to the Client, it may, within two (2) weeks of such notice being received or deemed to have been received in accordance with this condition 6.10 terminate the Contract by giving three (3) months written notice to Click.
6.12. Without prejudice to any other right or remedy that it may have, if the Client fails to pay Click on the Due Date, Click may:
6.12.1. charge interest on such sum under the Late Payment of Commercial Debts (Interest) Act 1998; from the Due Date , accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement and the Client shall pay the interest immediately on demand; and
6.12.2. suspend all Services until payment has been made in full.
6.13. Time for payment shall be of the essence of the Contract.
6.14. All sums payable to Click under the Contract shall become due immediately on its termination. This condition 6.14 is without prejudice to any right to claim for interest.
6.15. Click may, without prejudice to any other rights it may have, set off any liability of the Client to Click against any liability of Click to the Client.
7. Intellectual property rights
7.1. Save where agreed otherwise in writing (for example, where Click agrees to license the design and code of a website to the Client for an annual fee), all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials (excluding any Input Material) shall be owned by Click.
7.2. Subject to condition 7.4, Click licenses all such rights referred to in condition 7.1 to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make use of the Deliverables and the Services. This licence is terminated with immediate effect as soon as any invoice becomes overdue. In the event that the Client wishes to use the Deliverables and/or any of the Intellectual Property Rights for purposes outside of the scope of the Contract as set out in the Quotation prior to any such use the Client shall obtain the prior written agreement of Click on commercial terms to be agreed.
7.3. The Client grants Click a licence to the Input Material in order to provide the Services.
7.4. The Client acknowledges that where Click does not own the Pre-existing Materials, the Client’s use of rights in Pre-existing Materials is conditional on the Client obtaining a written licence from the relevant licensor.
7.5. The Client acknowledges that it is not the obligation of Click to search for registered trademarks or to contact the Intellectual Property Office on behalf of the Client unless specifically requested by the Client, agreed by Click within the Contract and on confirmation of the Quotation.
8. Standard licence terms
8.1. If the Client wishes to use the Deliverables in ways going beyond the parameters in the Brief and/or Quotation, it must approach Click for prior written consent.
8.2. In so far as use of the Deliverables as per the Contract involves use of third party material, Click will use every endeavour to secure such licence as is necessary to allow the required use of the same but only the extent required by the Brief and any use beyond the parameters in the Brief shall be at the Client’s wish and the Client shall indemnify Click in respect of any claim arising out of such use.
8.3. Subject to the above and to the rights of any third party, ownership of the Intellectual Property Rights shall remain vested in Click unless and until any assignment or other disposition of the Intellectual Property Rights is agreed between the parties in writing.
8.4. For the avoidance of doubt, where Click makes any presentation to the Client going beyond the Brief, the Client shall have no right to make use of any material contained in such presentation unless and until a separate contract is concluded between the parties.
8.5. Use of the Deliverables as per the Brief may involve the Client in continuing liability to third parties, for example for royalties, licence fees and performance fees. Click will endeavour to notify the Client of these as soon as practicable during the production process.
8.6. If, during or after the period of use of the Deliverables envisaged in this Contract, the Client wishes to use or authorise another to use any part of the Deliverables in ways outside those contemplated in this Contract, Click will not unreasonably withhold its consent for such use but may make such consent conditional on prior agreement between the parties as to reasonable fees and/or royalties.
9. Compliance
9.1. It shall be the sole responsibility of the Client to ensure that the Deliverables comply with all local laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended as stated in the Contract. It shall also be the Client’s responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which any competent lawyer of the Client in any of the relevant jurisdictions would advise.
9.2. The Client agrees to indemnify Click or its agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the Deliverables or use of them are contrary to any law, code or regulation in any country.
10. Publicity and examples
10.1. Notwithstanding the licence described in clause 8 above or any other disposition of the Intellectual Property Rights agreed between the parties, Click shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting Click’s work.
11. Limitation of liability
11.1. This clause 11 sets out the entire financial liability of Click (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of:
11.1.1. any breach of the Contract;
11.1.2. any use made by the Client of the Services, the Deliverables or any part of them; and
11.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3. Nothing in these Conditions limits or excludes the liability of Click:
11.3.1. for death or personal injury resulting from negligence; or
11.3.2. for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Click.
11.4. Subject to clause 11.2 and clause 11.3 Click shall not be liable for loss of business; or loss of goods; or loss of contract; or loss of use, for example, including but not limited to the Client’s website being unavailable; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.5. Click’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to an amount equal to the charges paid for the Services in the twelve months immediately preceding the event which gave rise to the claim.
12. Data protection
12.1. The Client agrees to comply with its obligations as a data controller under the provisions of the Data Protection Act 1998. The Client acknowledges and agrees Click will be a data processor for the purposes of the Data Protection Act 1998.
13. Termination
13.1. Either party may terminate the Contract without liability to the other on giving the other no less than four (4) weeks written notice to the other party.
13.2. Without prejudice to any other rights or remedies which the parties may have either party may terminate the Contract immediately upon written notice in the event that:
13.2.1. the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that party being notified in writing of the breach; or
13.2.2. the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
13.2.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
13.2.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
13.2.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
13.2.6. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
13.2.7. a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
13.2.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
13.2.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days; or
13.2.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2.3 to clause 13.2.9 (inclusive); or
13.2.11. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
13.3. Click may terminate the Contract on one (1) month’s written notice if there is a change of “control” of the Client (as defined in section 574 of the Capital Allowances Act 2001).
13.4. On termination of the Contract for any reason:
13.4.1. the Client shall immediately pay to Click all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Click may submit an invoice, which shall be payable immediately on receipt;
13.4.2. the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
13.5. On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: clause 7; clause 10; clause 11; clause 12; and clause 13.
14. Confidentiality and Click’s property
14.1. The Client shall keep in strict confidence all technical or commercial know how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by Click, its employees, agents, consultants or subcontractors and any other confidential information concerning Click’s business or its products which the Client may obtain.
14.2. The Client may disclose such information:
14.2.1. to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Client’s obligations under the Contract; and
14.2.2. as may be required by law, court order or any governmental or regulatory authority.
14.3. The Client shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition.
14.4. The Client shall not use any such information for any purpose other than to perform its obligations under the Contract.
14.5. All materials, equipment and tools, drawings, specifications and data supplied by Click to the Client (including Pre-existing Materials and Click’s equipment) shall, at all times remain the exclusive property of Click, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to Click, and shall not be disposed of or used other than in accordance with Click’s written instructions or authorisation.
15. General
15.1. Click shall have no liability to the Client under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lockouts or other industrial disputes (whether involving the workforce of Click or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.2. No variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties..
15.3. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise.
15.4. If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected. If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.5. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
15.6. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
15.7. The Client shall not, without the prior written consent of Click, assign, any of its rights or obligations under the Contract. Click may at any time assign any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
15.8. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.9. A person who is not a party to the Contract shall not have any rights under or in connection with it either under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
15.10. Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by prepaid first class post, recorded delivery or by commercial courier to the other party or as otherwise specified by the relevant party by notice in writing to the other party.
15.11. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract.